Mississippi Family Law Blog

Who is responsible for the debt?

Here is a common scenario. A husband and wife own a home in Madison, Mississippi. They finance $300,000 of the $350,000 purchase price with a lender. The mortgage is in both of their names. A year after they purchase the house, the husband wants a divorce. The husband moves out of the house in Madison and moves into a house in Brandon. As part of the divorce settlement, the divorce decree states that the wife will take possession of the home in Madison and is obligated to pay the mortgage. The husband thinks he is in the clear. However, the original note on the Madison home is not refinanced. About a year later, the wife quits making payments on the house in Madison and the mortgage goes into default. The result: The lender can sue both the wife and husband for the debt and probably will despite the fact that the divorce decree says that the wife is responsible for making the payments.

This is one of the financial scenarios of divorce discussed in a USA Today article yesterday. There is a common misunderstanding many have on who is responsible for the debt. In Mississippi, if that debt was incurred by both of you during your marriage (both of your names are on the mortgage or both of your names are on the credit card account), although the divorce decree may state one spouse is responsible for paying the debt, if that spouse quits paying, both spouses credit will be impacted and the holder of the note (bank or credit card company) can sue both for the debt. The divorce decree does not change the legal obligation you have to the lender. What can you do to ensure this does not happen?

Continue reading "Who is paying the mortgage?" »

Is this all I get?

Being a Mississippi divorce lawyer, I get questions about whether a spouse is entitled to alimony. The answer is it depends. After the equitable distribution of the marital estate (see previous post), the chancellor will look at the whole spectrum of property available to both spouses—the marital property divided as well as the non-marital property under each spouse’s control. If one party is left with a deficit, then the chancellor is to consider awarding alimony. In Mississippi, there are four different types of alimony—periodic, lump sum, rehabilitative, and reimbursement.

Continue reading "Property Division (Part III)—Alimony in Mississippi" »

Child support collection fee waived for Connecticut custodial parents

In an update to a previous blog I wrote about child support fees being charged to custodial parents receiving child support payments, Connecticut's governor told her state to cancel plans to collect the $25.00 fee from custodial parents receiving child support. The state will pay the federal government directly according to a recent news report.

Again, the question needs to be answered as to why isn't the fee being charged to the non-custodial parents who owe the child support as opposed to custodial parents who are only attempting to collect a court ordered debt. Stay tuned to see if other states follow suit.

Does equitable mean equal in Mississippi?

In a divorce, what is this “equitable distribution” scheme which Mississippi follows? In 1994, the Mississippi Supreme Court described it as:

The authority of the courts to award property legally owned by one spouse to the other spouse, and recognizes that a non-working spouse’s efforts contribute to the acquisition of the marital estate… Under the equitable distribution system, the marriage is viewed as a partnership with both spouses contributing to the marital estate in the manner which they have chosen.

Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994). Well, that is the justification for the system, but how does the chancellor divide the property?

Continue reading "Property Division (Part II)—What is “equitable distribution”?" »

Clerk to have her day in court

According to the news out of Meridian, Mississippi, Cindy Truhett, the child support clerk accused of embezzling funds from the Lauderdale and Clarke County Child Support Program, is scheduled to go to trial on November 27th in the Lauderdale County Circuit Court. Cindy Truhett is accused of writing unauthorized checks to herself over a five year period totaling more than $216,000.00.

Man sets fire to attorney's office

A piece of advice. Don't call the attorney representing your spouse, make threats over the phone to the attorney, and then set the attorney's office on fire. You will end up in jail. That is what a South Carolina man has learned.

In a story out of Columbia, South Carolina, a man involved in a heated divorce called his wife's attorney 28 times with profanity laden threats and set fire to the attorney's law firm after being ordered by the court to pay alimony and attorney's fees. He is now sitting in jail awaiting a trial on charges of arson, burglary, and stalking.

Can you have a common law marriage in Mississippi?

No. Common law marriages were abolished in Mississippi in 1956 with the adoption of Mississippi Code 93-1-15. Further, the legislature has made it illegal for a man and woman to live together in Mississippi if they have sexual relations.

You should be cautioned that Mississippi courts will give recognition to a valid common law marriage entered into in another state. In George v. George, 389 So.2d 1389 (Miss. 1980), a Warren County couple were married and divorced in Mississippi. The man moved to Georgia and the woman subsequently joined him where they lived together for four years, moving from Georgia, Alabama, Louisiana, and finally ending up back home in Mississippi. After separating, the woman filed for divorce in Mississippi. In upholding the divorce and division of property, the Mississippi Supreme Court stated:

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The substance abuser

Two other fault based grounds for divorce in Mississippi are habitual drunkenness and drug use. Under the statute, “habitual drunkenness” and “habitual and excessive use of opium, morphine, or other like drug” are each grounds for a divorce. Attempting to define what is meant by the statute is more difficult.

The cases in Mississippi answering the question of what is habitual drunkenness are few. In those cases where it is addressed, the courts have usually required that threats or some other adverse effect be shown on the marriage in addition to the spouse being habitually drunk. It is a very fact based ground and depends on the circumstances of each case.

Continue reading "Divorce (Part V)—Habitual drunkenness or drug user" »

Annulment v. Divorce—what is the difference?

As a Mississippi divorce lawyer, I've had questions for some folks as to the difference between a divorce and annulment. In Mississippi, the distinction between divorce and annulment can be blurred. Generally speaking, a divorce is the dissolution of a valid marriage and an annulment is the dissolution of an invalid or void marriage. You can view my previous post on the grounds for divorce in Mississippi in addition to the post on what it takes to be a valid marriage in Mississippi.

There are two different broad grounds for annulment in Mississippi. The first is the annulment of a void marriage. A void marriage in Mississippi is either a bigamous or incestuous marriage. A bigamous marriage is one in which one spouse is still married to another person at the time of the other marriage. In addition to being a void marriage, it is also a crime. Under the Mississippi Code, a marriage is incestuous if the person marries their brother or sister, half brother or sister, step-brother or sister, parent, adoptive parent, step-parent, grandparent, step-grandparent, uncle, aunt, first cousin, or their own child’s widow or widower.

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Rendezvous turns sour note

Here’s a new one which brings an old song to life. For those who remember Rupert Holmes' song in the which the man answers the personal ad of a woman who turns out to be his wife and they both realize they like Pina Colades and getting caught in the rain… and live happily ever after. Well, the on-line version didn’t have such a happy ending.

According to a recent report, a Bosnian couple were each secretly chatting online with another person, pouring their hearts out, and having visions of meeting the love of their life. The problem was they finally decided to meet face-to-face. The rendezvous was not a reprise of Sleepless in Seattle with Tom Hanks meeting up with Meg Ryan. Rather, the couple met and realized all along they had been chatting with each other. As opposed to walking away arm and arm, they headed straight to divorce court with each claiming the other was unfaithful.

See, life doesn’t always imitate art, or vice versa.

Think Big Brother is watching, what about your spouse?

Here is another story that will give cheating spouses a sinking feeling in their stomach or will spark an idea for those suspecting their spouse of being unfaithful. According to a recent New York Times article, electronic eavesdropping is on the rise for suspicious spouses. One technology consultant who suspected his wife was cheating on him installed a piece of software (PC Pandora) on her computer. The program took snapshots of her computer screen every 15 seconds and e-mailed them to him. It also records e-mail messages and instant messaging, monitors and records all computer keystrokes, and monitors and records all websites visited. Originally intended as software to monitor children’s computer activities, it is now being used to watch spouses. The software gave the consultant the information he was looking for—his wife was having an affair. A divorce battle ensued. From computer software to GPS tracking devices to hacking into e-mail accounts, suspecting spouses are snooping.

Folks need to understand that if you use a computer or a phone, you are leaving an electronic trail which can easily be followed. Once divorce proceedings begin, the discovery process can allow your spouse to discover e-mails and inspect computer hard drives. Just because you hit the delete button does not mean the data is gone. Many times it is easily recoverable.

If you suspect your spouse is not being faithful in your marriage, you need to seek the advice of an attorney before you put on your cyber-sleuthing hat as there are some federal laws which you must ensure are not violated in attempting to gather electronic information.

Custodial parent says fee for collecting child support unfair

In an story out of Meridian, Mississippi, a mother received a letter from the Mississippi Department of Human Services charging her a $25 fee for collecting child support. Under federal law, the fee is charged when DHS is successful in recovering child support where the custodial parent has not received public assistance.

The fee is nominal in comparison to the taxpayer dollars spent collecting the child support, but the question becomes why the fee is not charged to the non-custodial parent who owed the child support.

What is required to get married in Mississippi?

If a couple wants to marry in Mississippi, there are formal requirements. The formal requirements for a valid marriage in Mississippi are:

1. A valid license; and
2. A ceremonial marriage.

Continue reading "Getting married in Mississippi" »

Natchez home to tamales and margaritas gets new abode

A little off the beaten path from family law, but important news nonetheless and great news for those lovers of tamales and margaritas at the infamous Fat Mama’s in Natchez, Mississippi. The Mississippi Court of Appeals ruled in favor of the City of Natchez and Fat Mama’s to relocate Fat Mama’s from its current historic location to the corner of Canal and Washington.

The dispute arose when the United States Department of Interior designated land as a national park. The land included Fat Mama’s present location. So Fat Mama’s had to move. The city approved the new location, but some homeowners filed a lawsuit protesting its relocation and rezoning of the area. In an opinion issued this last Tuesday, the Mississippi Court of Appeals upheld the City of Natchez’s decision to approve the rezoning.

So for those of us who travel to Natchez (if you have not been, you are missing an experience), rest assured that Fat Mama’s will continue serving those tamales and margaritas and soon will be sporting a new location—hopefully one with a little more parking.

Don’t pay your child support in Mississippi—lose your license?

States are attempting to crack down on parents who fail to pay child support. In a story yesterday out of Memphis, the Tennessee Department of Human Services is seeking to revoke the licenses (drivers, professional, hunting and fishing) of more than 14,000 parents who are behind on their child support payments. For those in Mississippi, similar laws are on the books. The majority of these laws came out of a push by Congress to crack down on parents who failed to pay child support. All states have laws which require the suspension of licenses (drivers, professional, occupational, and recreational) if the person does not pay child support as required by law.

Under Mississippi law, all licensing agencies are required to report the names of individuals who hold licenses to the Mississippi Department of Human Services, Division of Child Support Enforcement. If a person holding a license issued by the State of Mississippi becomes delinquent in paying child support, then the State can start suspension proceedings against the individual.

Continue reading "Parents who don’t pay child support BEWARE—Mississippi could revoke your license" »

Who decides who gets what property in a Mississippi divorce?

The easy answer is that if you and your spouse can agree, then each of you have a say in how your property will be divided. That is how it works in the perfect world. Yet, many times, spouses are unable or unwilling to agree on how to split their assets as one spouse usually thinks they are entitled to more property than the other. So what happens? The chancellor will decide and is guided by case law in Mississippi.

Property division in Mississippi divorces has evolved over the years. For many years, Mississippi followed the “title” theory of property division. Under this system, the person who held “title” to the property received the property in a divorce. So if a husband held title to all the family property, a wife staying at home raising the children and carrying for her husband could end up with little property at the time of divorce even though she participated in the accumulation of wealth. This system had obvious inequities.

Although Mississippi followed the title system for many years, it evolved over the last 20 years trying different methods to minimize those inequities such as using alimony to offset one spouse's disproportionate share of property. Finally, in 1994, the Mississippi Supreme Court lay to rest the “title” system by adopting the system of “equitable distribution.” Note that I said “equitable distribution,” not “equal distribution.” There is a difference.

In coming posts, I will discuss the “equitable distribution” system of property division in Mississippi divorces.

Can Johnny decide he wants to live with Dad?

Maybe. Mississippi Code 93-11-65(1)(a) provides in part:

“If the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.”

Continue reading "Do children have a say in which parent they live with?" »